S V PAWENI & ANOR 1985 (2) ZLR 133 (S)

S v PAWENI & ANOR 1985 (2) ZLR 133 (S)

Flynote

Criminal procedure — duty of prosecutor — disclosure of previous inconsistent statements made by State witnesses
— privilege of State witnesses' statements — effect of non disclosure of inconsistent statements by prosecutor on conduct of trial.

Criminal procedure — sentence — bribery — most serious instance of the crime of bribery in this country — approach of courts — crimes against property in sentence not to be comparable with murder sentence.

Headnote

During the course of the criminal trial before the High Court counsel for the appellants made application for disclosure of warned and cautioned statements made by accomplices who had given evidence against the appellants. Such statements had been made in respect of their own offences and not for the purposes of the trial of appellants. In addition the accomplices had made affidavits for the purpose of the trial of the appellants. Counsel for the State objected to the disclosure of any statements on the grounds that such statements were privileged. The trial judge initially upheld State counsel's objection. At a later stage, however, an application again being made for disclosure of the warned and cautioned statements, the trial judge ordered such disclosure but only after both accomplice witnesses had given their evidence. Having disclosed the statements an accomplice witness was recalled for further cross-examination. On appeal it was submitted that the failure to disclose the statements at the outset had prejudiced the case of the appellants in that had they been disclosed earlier cross-examination of the accomplice would have been more intense and more pressing and the impression they made on the trial court might have been less favourable. Taking the evidence as a whole however, it could not be said that the failure to disclose the statements at an earlier stage in any way prejudiced the defence of the appellants. The cogency, general probabilities and corroboration of the accomplice witness evidence would inevitably have compelled the trial court to come to the same conclusion on the facts that it did.

The duties of a prosecutor in disclosing previous inconsistent statements discussed. Whether the disclosure of part of a privileged document results in the waiver of privilege in respect of the whole document considered, but not decided.

Bribery of public officials is a most serious evil in any society and is particularly to be guarded against in a developing country. All the reasons for requiring the exemplary punishment of public servants who accept bribes apply with equal vigour to the punishment of those who bribe them and in relation to the latter there are additional reasons for an even greater measure of deterrence and retribution.

When assessing sentence the general rule is that the court must not take into account as aggravation facts or circumstances that constitute a different and more serious offence with which the accused has not been charged. This rule is not immutable, however. In the instant case the sentence to be passed had to be commensurate with the crime of bribery only, and not with the more serious offence of fraud on a massive scale. Sentences of fifteen years' and ten years' imprisonment imposed by the trial judge fell into the range of punishments for crimes as serious as murder with slender circumstances of extenuation. There are few occasions when crimes against property are, by their magnitude, so serious as to call for the sort of punishment that would not be inappropriate when life has been deliberately taken.